Draft Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025

Martin Wrigley Excerpts

Tuesday 4th February 2025 General Committees

[Martin Wrigley (Newton Abbot) (LD)]

It is a pleasure to serve under your chairship, Sir Christopher. I am disappointed in this statutory instrument. I recognise the Minister’s acknowledgment of the small sites, high-harm issue, but the issue is far more important and we are missing an opportunity here. Can the Minister set out why the regulations as drafted do not follow the will of Parliament, accepted by the previous Government and written into the Act, that thresholds for categorisation can be based on risk or size? That was a long-argued point that went through many iterations.

The then Minister accepted the amendment that was put forward and said:

“many in the House have steadfastly campaigned on the issue of small but risky platforms.” —[Official Report, 12 September 2023; Vol. 737, c. 806.]

He confirmed that the legislation would now give the Secretary of State the discretion to decide whether to set a threshold based on the number of users or the functionalities offered, or both factors, with the change ensuring that the framework was as flexible as possible in responding to the risk landscape. That has been thrown away in this new legislation. The Minister just said that we must do everything in our power, and yet the Government are throwing out a crucial change made to the Act to actually give them more power. They are getting rid of a power by changing this.

The amendment was to ensure that small sites dedicated to harm, such as sites providing information on suicide or self-harm or set up to target abuse and hatred at minority groups, like we saw in the riots in the summer, were subject to the fullest range of duties. When Ofcom published its advice, however, it disregarded this flexibility and advised that regulation should be laid bringing only the large platforms into category 1.

[Kirsty Blackman (Aberdeen North) (SNP)]

Is the hon. Member as concerned as I am that the Government seem to be ignoring the will of Parliament in their decision? Is he worried that young people particularly will suffer as a result?

[Martin Wrigley]

Absolutely—I am. The Secretary of State’s decision to proceed with this narrow interpretation of the Online Safety Act provisions, and the failure to use the power they have to reject Ofcom’s imperfect advice, will allow small, risky platforms to continue to operate without the most stringent regulatory restrictions available. That leaves significant numbers of vulnerable users—women and individuals from minority groups—at risk of serious harm from targeted activity on these platforms.

I will set a few more questions for the Minister. How do His Majesty’s Government intend to assess whether Ofcom’s regulatory approach to small but high-harm sites is proving effective, and have any details been provided on Ofcom’s schedule of research about such sites? What assessment have the Government made of the different harms occurring on small, high-harm platforms? Have they broken this down by type of harm, and will they make such information available? Have the Government received legal advice about the use of service disruption orders for small but high-harm sites? Do the Government expect Ofcom to take enforcement action against small but high-harm sites, and have they made an assessment of the likely timescales for enforcement action? Will the Government set out criteria against which they expect Ofcom to keep its approach to small but high-harm sites under continual review, as set out in their draft statement of strategic priorities for online safety?

Was the Minister aware of the previous Government’s commitment that Select Committees in both Houses would be given the opportunity to scrutinise draft Online Safety Act statutory instruments before they were laid? If she was, why did that not happen in this case? Will she put on record her assurances that Online Safety Act statutory instruments will in future be shared with the relevant Committees before they are laid?

For all those reasons, I will vote against the motion.

--- Later in debate ---

[Feryal Clark]

Sorry, I have lots of points to cover. If I have not covered the hon Member’s concerns in my response, she is more than welcome to intervene later.

These small but risky services are of significant concern to the Government, and they will still have to protect against illegal content and, where relevant, content that is harmful to children. Ofcom also has a dedicated taskforce to go after them. I hope that answers the hon. Member’s question.

The hon. Member for Newton Abbot also raised the review of Ofcom’s approach. The regulator has already trialled an approach of targeting small but risky services through its regulation of video-sharing platforms. Indeed, a number of those services improved their policies and content moderation in response. All the adult platforms under the VSP regime, large and small, have implemented age verification through this route to ensure that under-18s cannot access pornography on their services. In instances where services fail to make necessary changes, they will face formal enforcement action from Ofcom. Ofcom has a proven track record and the Government have every faith in its ability to take action against non-compliant services.

The hon. Member also raised issues around how Ofcom will enforce action against small but risky services. Ofcom will have robust enforcement powers available to use against companies that fail to fulfil their duties and it will be able to issue enforcement decisions. Action can include fines of up to £18 million or 10% of qualifying worldwide revenue in the relevant year, whichever is higher, and Ofcom can direct companies to take specific steps to comply with its regulation.

[Martin Wrigley]

The Minister raised the issue of age verification, which is good. However, she did not say how “harmful to adults”, “harmful to vulnerable minorities” and “harmful to women” are categorised. Children are protected in this case, but those other groups are not.

Also, in response to the answer that the Minister just gave, the difficulty is not the Ofcom powers; it is the obligation on the provider. If we have not put a provider into category 1, it does not have the same level of obligation as category 1 companies do. No matter what powers Ofcom has and no matter what fines it imposes, it cannot get such companies to give those commitments to a category 1 level if they are not in that category.

Removing the section is not giving Ofcom the tools it needs. The Minister was absolutely right earlier when she said that there is much more to do. Why drop this ability to put other sites in category 1?

[Feryal Clark]

I think the hon. Member missed it when I said that, as things stand, the Secretary of State does not have the power to include them. It is not about removing them; it is about not having the powers to include them, as things stand, at the moment.

I will conclude. In extreme cases, Ofcom, with the agreement of the courts, uses business disruption measures, which are court orders that mean third parties have to withdraw non-compliant services, or restrict or block access to non-compliant services in the UK.

The hon. Member for Newton Abbot also asked whether the Act will be reviewed to address the gaps in it. As I said at the start, our immediate focus is getting the Act implemented quickly and effectively. It was designed to tackle illegal content and protect children, and we want those protections in place as soon as possible. It is right that the Government continually assess the ability of the framework to keep us safe, especially given that technology develops so quickly. We will look, of course, at how effective these protections are and build on the Online Safety Act, based on evidence. However, our message to social media companies remains clear: there is no need to wait. As the Opposition spokesperson said, those companies can and should take immediate action to protect their users.

On the use of business disruption measures, the Act provides Ofcom with powers to apply to court for such measures, as I have said, including where there is continued failure and non-compliance. We expect Ofcom to use all available enforcement mechanisms.

The hon. Member for Huntingdon asked how Parliament can scrutinise the delivery of the legislation. Ongoing parliamentary scrutiny is absolutely crucial; indeed, the Online Safety Act requires Ofcom codes to be laid before Parliament for scrutiny. The Science, Innovation and Technology Committee and the Communications and Digital Committee of the House of Lords will play a vital role in scrutinising the regime. Ofcom’s codes of practice for illegal content duties were laid before Parliament in December. Subject to their passing without objection, we expect them to be in force by spring 2025, and the child safety codes are expected to be laid before Parliament in April, in order to be in effect by summer 2025. Under section 178 of the Act, the Secretary of State is required to review the effectiveness of its regulatory framework between two and five years after key provisions of the Act come into force. That will be published as a report and laid before Parliament.

Letters were sent in advance of laying these regulations to the House of Lords Communications and Digital Committee and the House of Commons Science, Innovation and Technology Committee. Hon. Members have asked about user numbers. Ofcom recommended the threshold of 34 million or 7 million for category 1. Services must exceed the user number thresholds. The Government are not in a position to confirm who will be categorised. That will be the statutory role of Ofcom once the regulations have passed.

--- Later in debate ---

[Feryal Clark]

I will again set out what the Secretary of State’s powers are. The Government have considered the suggestion of Baroness Morgan and others to categorise small but risky based on the coroner or Ofcom linking a service to a death. The Government were grateful for that suggestion. However, there were issues with that approach, including with what the Act allows the Secretary of State to consider when setting the categories. The Secretary of State is not allowed to consider anything other than the factors set out in the Act, which says that it has to include easy, quick and wide dissemination for category 1, and has to be evidence based.

I hope that the hon. Member for Aberdeen North will accept that I will write to her in great detail, and include a letter from Government lawyers setting out what I am saying in relation to the powers of the Secretary of State in setting the categories. I hope that she will be satisfied with that. I want to make it clear that we are not taking anything out; the Secretary of State is proceeding with the powers that he has been given.

[Martin Wrigley]

Will the Minister give way?

[Feryal Clark]

I am going to proceed. I think I have covered the main points raised by hon. Members. I hope that the Committee agrees with me on the importance of enacting these thresholds and implementing the Online Safety Act as swiftly as possible. I made it clear that Ofcom has set up a taskforce that will review the small but risky sites, in response to the Secretary of State’s letter to it in September.

--- Later in debate ---

[Martin Wrigley]

I do not have the benefit of having gone through the Act in its entirety, so I appreciate the input of hon. Members on this subject. It is that one word: “or”. Amendment 245 entailed moving from a test of size “and” functionality to a test of size “or” functionality. That is not, as far as I can hear from what the Minister has said, what is causing the problem; it should be giving the Government the opportunity to keep that in there. In setting these categorisations on just size, they are ignoring that.

The Minister also mentioned that the Act did not give the Secretary of State the power to allow somebody else to put organisations or sites into these categories; no, that is not what is being asked. It is about a recommendation from Ofcom for the Secretary of State to bring those smaller types of sites into the category. What this change does is remove the powers to stop those small sites that promote misogyny and racist hatred and those things that are very harmful, and which we saw examples of in the summer.

The Science, Innovation and Technology Committee is looking into those events at the moment, as I know, because I sit on the Committee. However, those powers are being thrown away, and an opportunity is being missed, because the powers for setting the thresholds have been misinterpreted. I beg the Minister to take a moment and look again, because the Government are getting this wrong.